Activist Government vs. The Constitution

Sanford Levinson took to the op-ed pages of The New York Times the other day to rail against what he doesn’t like about the U.S. Constitution and our system of government. Turns out, there isn’t much about our Constitution or system that this University of Texas professor does like.

Indeed, he considers the American political system to be “pathological.” The Constitution is generating the pathology.

So what doesn’t he like? Well, separation of powers, for one thing. Checks and balances, for another. The electoral college irks him. The Supreme Court’s judicial review positively sends him around the bend. He wishes the Constitution could be more easily amended, so he could dispense with those particular protections.

He touts Theodore Roosevelt and Woodrow Wilson for their desire to alter the Constitution, and notes that this led to amendments authorizing an income tax and establishing direct election of senators, Prohibition and women’s suffrage. “No such debate is likely to take place between Barack Obama and Mitt Romney,” he writes. “They, like most contemporary Americans, have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well.”

But wait! We live under the same system as did TR and Wilson. So why blame the Constitution for any ossification in thinking? It’s the temper of the times, not the document.

Yes, the country is in crisis—or actually a series of interlocking crises. And, yes, the system is proving to be ineffective in marshaling the political force needed to address these crises. But the system has lasted 220 years for a reason: it strikes an amazingly stable balance between the politics of whim and the politics of deadlock. Right now we’re stuck in deadlock, but the answer is to break the deadlock through political action (which will happen, as it always has), not to introduce more caprice and whimsy into the system through frustrated meddling.

The underlying reality is that Levinson wants a more activist government. That’s what the Framers didn’t want because they didn’t trust government. So take your pick—the Framers’ 220-year-old functioning system or Levinson’s howler.